|Legal Opinion: |
Text of Document: July 25, 2003
You have the following question: Can the city annex and zone a piece of territory in the same ordinance?
In my opinion, the answer is yes, provided that the ordinance complies with the notice requirements contained in the annexation and zoning laws, which, I understand are well-known to the city. But I also think that Melissa Ashburn, the MTAS legal consultant who opined that the answer is no, is supported by some compelling arguments, one of which is that neither the annexation nor the zoning laws authorize such action by a municipality in Tennessee. For that reason alone, if the city annexes and zones a piece of property in the same ordinance it stands on almost untried legal ground. Untried legal ground is not a comfortable place for a municipality to be in the area of annexation.
In that connection, as far as I can determine, your precise question has arisen only once in the United States, in Beshore v. Town of Bel Air, 206 A.2d 678 (Md. Ct. App. 1965). There the Town of Bel Air, Maryland, annexed and zoned territory in the same resolution. The Maryland annexation law did not authorize such a procedure, but it provided that, “The [annexation] resolution....shall contain complete and detailed provisions as to the conditions and circumstances applicable to the change in boundaries and to the residents and property within the area to be annexed.” [Emphasis is mine.] The Court upheld the annexation/zoning against four challenges, three of which are pertinent to your question. [The fourth challenge related to adequate notice of the annexation resolution, which is not an issue in your question].
I will address those challenges with respect to how they were resolved under Maryland law, and attempt to analyze the same challenges under Tennessee law:
1. That the “conditions and circumstances” of the above statute did not contemplate zoning of the annexed territory in the same ordinance. The Court noted that it could find no other case involving the question of whether a municipality could both annex and zone territory under one ordinance. [Apparently, the annexation statute of at least one state, Idaho, authorizes such action. See Harrell v. City of Lewiston, 506 P.2d 470 (1973)].
But there was no logical reason, declared the Court, why zoning could not be a “condition and circumstance” within the meaning of the above annexation statute. Furthermore, “a municipality having an authorized planning and zoning authority has exclusive jurisdiction to zone annexed property.” For that reason, it was “illogical and wasteful” to require a municipality to annex and zone in separate proceedings. “The realities of modern annexation,” continued the Court, “are such that the owners of the properties to be annexed are vitally interested in the zoning classification which their properties will receive upon annexation. Delay in classifying could often result in considerable financial loss.” [At 685]
Neither Tennessee’s annexation statute nor its zoning statute provide for joining an annexation and zoning ordinance. Furthermore, Tennessee’s annexation statute does not contain a “conditions and circumstances” provision. However, Tennessee Code Annotated, § 6-51-102(b) provides that:
(b)(1)Before any territory may be annexed under this section by a municipality, the governing body shall adopt a plan of services establishing at least the services to be delivered and the proposed timing of the services....
(2) The plan of services shall include, but not be limited to: police protection, fire protection, water service, electrical service, sanitary sewer service, solid waste collection, road and street construction and repair, recreational facilities and programs, street lighting, and zoning services. [Emphasis is mine.]
(3) The plan of services shall include a reasonable implementation schedule for the delivery of comparable services in the territory to be annexed with respect to the services delivered to all citizens of the municipality.
I can think of no reason under Tennessee Code Annotated, § 6-51-102(b), that a city could not adopt a plan of services that includes zoning, as is required under Tennessee Code Annotated, § 6-51-102(b)(2), and include that part of the plan of services–or the entire plan of services for that matter--in the annexation ordinance. Tennessee Code Annotated, § 7-51-102(b)(1), (2), and (3), expressly says, respectively, that:
- The plan of services shall contain “at least the services to be delivered and the projected timing of the services....”
- The plan of services must be done “before” the annexation.
- The plan of services must include a “reasonable implementation schedule....”
Nothing in that statute, nor any other provision of the annexation law that I can find, suggests that once the plan of services is adopted, the municipality cannot actually accomplish the zoning of the territory within the annexation ordinance. If the annexation ordinance fails, the plan of services, including its zoning component, would simply go down with it.
In addition, in State ex rel. SCA Chemical Waste Services, Inc. v. Konigsberg, 636 Tenn. 430 (Tenn. 1982), Shelby County adopted an interim moratorium on the issuance of certain building permits pending the county’s revision of its comprehensive zoning ordinance. The Court upheld that moratorium based on vague language in a private act giving the county broad general powers to adopt resolutions “governing the operation of government or regulating the conduct and affairs of the residents of the city....” The same act provided that the grant of power should be “liberally construed.” For that reason, continued the Court, “Thus, although specific authority to enact an interim zoning ordinance or regulation of the type here in issue is not specifically mentioned [in the private act] we have no hesitation in concluding that it was intended to be included within the broad sweep of the legislative power granted by that section. [At 436]
Citing Sherman v. Reavis, 373 S.C./ 542, 257 S.E.2d 735 (1979), the Court continued:
We hold that a municipality may properly refuse a building permit for a land use in a newly annexed area when such use is repugnant to a pending and later enacted zoning ordinance....This holding, which is followed by numerous jurisdictions, is supported by sound reasoning. [Citation omitted.] As stated in Chicago Title & Trust Company v. Palantine, 22 Ill. App.2d 264, 160 N.E.2d 697, 700 (1959). It would be utterly illogical to old that, after a zoning commission had prepared a comprehensive zoning ordinance or an amendment thereto, which was on file and open to public inspection and upon which public hearings had been held, and while the ordinance was under consideration, any person could by merely filing an application compel the municipality to issue a permit which would allow him to establish a use which he either knew or could have known would be forbidden by proposed ordinance, and by doing so nullify the entire work of the municipality in endeavoring to carry out the purpose for which the zoning law was enacted. 257 S.E.2d 737 [At 436]
Section 6-19-101(26) of the general law manager-commission charter under which your City is established, provides that among the powers of the city is power to “Regulate the location, bulk, occupancy, area, lot, location, height, construction and materials of all buildings and structures....” The authority of the City to pass interim zoning ordinances, then, is considerably more specific than was the authority upon which Shelby County’s interim zoning ordinance was based.
Konisgberg obviously does not directly deal with the authority on the part of a municipality to annex and zone property in the same ordinance, and I do not refer to it to suggest that the City pass an interim zoning ordinance. Rather, I refer to it for support of the logic that if the City could pass an interim zoning ordinance with respect to the property at issue because it obviously has zoning jurisdiction over such property upon its annexation, it could simply adopt an ordinance in which the same property is both annexed and zoned. Needless to say, the city would need to go through all the public hearings on the annexation of the property, including hearing on a plan of services, all of which were open to the public.
2. That because neither the zoning nor the annexation law provided for combining annexation and zoning into one proceeding, the annexation resolution violated the rule against enlarging by implication statutes in derogation of the common law requiring strict application of all delegated powers.
The court simply concluded that their was no enlargement of the power delegated under either statute by exercising them together. In addition, the “conditions and circumstances” provision of the annexation law permitted that exercise.
In Tennessee, the fact that the city is required to adopt a plan of services that includes zoning, and the timing of the zoning, seems to neutralize any argument that allowing a city to adopt a joint annexation ordinance and zoning ordinance somehow operates as an enlargement by a municipality of the state’s delegated annexation and/or zoning powers. Under Tennessee Code Annotated, title 51, chapter 1, a Tennessee municipality has the power to annex territory, and under Tennessee Code Annotated, title 13, chapter 7, it has the authority to zone territory. Doing both things in the same ordinance does not appear to enlarge either power. In fact, it makes the exercise of both powers more efficient.
3. That the annexation resolution embraced more than one subject (annexation and zoning), which was prohibited by the Maryland Constitution, and its title mentioned only one subject–annexation.
That constitutional provision was not violated when all of the provisions of the resolution, were “germane” to the general subject of the resolution [Citing Sutherland, Statutory Construction (3rd ed.) § 1713., and Rhyne, Municipal Law, pp. 227-228], concluded the Court. “As we have seen, the fixing of zoning classifications for newly annexed land is a proper condition and circumstance of annexation, and thus it is germane to the subject.” [At 686]
In Tennessee, unless there is a charter provision to the contrary, a municipality in Tennessee can pass an ordinance that embraces two subjects. It is said in Calloway v. Lenoir City, 3 Tenn. Civ. App. 658 (1913), that:
In fact, the charter of this town does not require, nor is there any law of the State that does require an ordinance to have a caption to it, and we know of no rule of law, nor has the industry of the counsel been able to cite to us any, which holds that an ordinance may not deal with more than one subject in its body, although it is usual and common to only attempt to regulate by one ordinance one subject, and yes we see no objections to nor reasons why, an ordinance may not deal with a number of kindred subjects. [At 664]
I find nothing in the general law manager-commission charter, under which the City operates, that prohibits the city from passing an ordinance that contains more than one subject.
I suppose one could argue that annexation and zoning are not “kindred subjects,” but that is one of the arguments against the legality of the ordinance that was rejected in Beshore v. Town of Bel Air, and the requirement in the annexation law that a plan of services to include the timing of services, including zoning, seems to make the subjects of annexation and zoning “kindred subjects.”
But, as indicated above, Beshore v. Town of Bel Air, standing by itself, might be thin authority to support annexation and zoning in the same ordinance. If the City decides to do it, it may become a guinea pig. For that reason, Melissa Ashburn’s opinion should be passed over only after the risks are carefully weighed.
Let me know if I can help you further in this or any other matter.
Sidney D. Hemsley
Senior Law Consultant